Keep Food Legal Foundation filed an amicus curiae (or friend of the court) brief this week in federal court in an important appellate case that centers on the federal government's wrongful taking of the assets of Florida tomato growers in 2008. The case, DiMare Fresh, Inc. et al. v. United States, now before the United States Court of Appeals for the Federal Circuit, where we filed the amicus brief, pits a host of Florida tomato growers against the federal government.
The case arose after the FDA issued a warning to U.S. consumers in 2008, urging them not to buy Florida tomatoes. The agency claimed the tomatoes were responsible for a widespread outbreak of foodborne illness. But the agency had its facts wrong. It turns out tomatoes were never the cause of any illnesses, and that hot peppers grown in Mexico were entirely to blame for the outbreak.
The damage the FDA warning caused to Florida tomato growers was enormous. All told, the FDA's erroneous warning cost Florida tomato growers hundreds of millions of dollars in losses.
But a lower federal court ruled last year in favor of the federal government.
"The ruling unsettles numerous growers, who collectively lost several hundred million dollars following FDA food safety warnings in 2008 that proved erroneous," one report declared in the wake of the lower ruling last year by the U.S. Court of Federal Claims. "The ruling also curtails other growers tempted to base similar challenges on the constitutional requirement that the government pay compensation for taking property."
That constitutional requirement is the Takings Clause, an integral part of the Constitution's Fifth Amendment. The Takings Clause, as we describe in our brief, states government may only take private property for "public use," and requires the government to provide owners whose property is taken for public use with "just compensation."
Keep Food Legal Foundation filed the amicus brief jointly with its executive director Baylen Linnekin, who wrote the brief, in support of DiMare Fresh and its co-plaintiffs. The brief describes how the origins of the Takings Clause go back to Magna Carta (Britain's charter of rights, authored in 1215) and a 1606 English court case involving the food preservative saltpeter. As we describe, in both Magna Cara and the Saltpeter Case--as well as in the first American protection against government takings, the Massachusetts Body of Liberties, from 1641--limitations on government takings of food and requirements of compensation in the event of such takings were central to the development of takings law. Simply put, there would likely be no Takings Clause were it not for protections of the rights of property owners against government takings of food. As we describe in our brief, the development of American thinking on takings continued through the 1760s, when British laws began to target colonists' food for seizure and consumption, and coalesced during the American Revolution, when British troops seized colonists' food without compensation.
The history we describe to the court places food at the very heart of the origins of the Takings Clause. Such origins are often key, as we note, in helping courts to determine the proper interpretation of fundamental rights. It's for that reason that our amicus brief urges the court to "grant the full weight of the Takings Clause [in this case] in order to protect the fundamental rights of producers and consumers of food alike."
To the best of our knowledge, constitutional scholars have only hinted previously at the essential links we describe between food and the Takings Clause. Prof. Richard Epstein, for example, in his seminal 1985 work Takings, writes that "[t]he dominant motivation for the clause may have been the taking of food and supplies during time of war for the support of government troops."
While the theory that a "taking" arose in the FDA tomato case--due to the fact the federal government's improper warning to consumers caused producers to lose money and property--is relatively novel, it's not without precedent. Just this month, a court in Wales awarded a plaintiff £9,000,000 (roughly $13.5 million USD) after a typo by a government office there wrongly informed creditors that a 124-year-old business had gone bankrupt. The typo caused the business's creditors to pull all of their orders with the company and--in a cruel twist--actually caused the otherwise-vibrant engineering business, which had 250 employees, to go bankrupt. The court ordered the government to pay the firm £9 million because of its error.
Though the DiMare Tomato case is important on its own merits, it has gained added importance in light of the U.S. Supreme Court's decision last week to revisit the case of Horne v. USDA. In that case, a family that markets raisins sued the USDA to force the agency to compensate the family after the USDA forced it (along with raisin handlers around the country) to turn over cash or almost half their raisin crop to the agency in return for the purported privilege of handling raisins. Keep Food Legal Foundation anticipates filing an amicus brief in the Horne case in support of the Horne family.
If you would like to support our continued work on this and other important issues, please make a tax-deductible donation to Keep Food Legal Foundation today.
Cato Unbound, an online publication of the Cato Institute, a libertarian think tank in Washington, DC, has hosted a lively discussion this month asking whether soda taxes and other public policy measures can be effective in combating obesity. Keep Food Legal Foundation executive director Baylen Linnekin is one of four invited essayists who has been taking part in the discussion. Other writers include British economist Christopher Snowdon, who opposes such taxes; Russell Saunders, a pseudonymyous Massachusetts physician and writer who supports them; and Yale Rudd Obesity Center's Jennifer Harris, an enthusiastic supporter of soda taxes.
In his first essay, Linnekin suggested that government's role should be limited to ending subsidies and protections for producers of sweeteners like corn and sugar. Read Linnekin's initial essay here.
The conversation continues through the end of January--with several essays, including a follow-up piece from Linnekin--expected to be posted in the next day or two. Tune in to Cato Unbound to read more.
Keep Food Legal Foundation's Baylen Linnekin Leads Local Food Producer Panel at Duke Law School Symposium
Last week Keep Food Legal Foundation executive director Baylen Linnekin was fortunate to take part in the Duke Environmental Law & Policy Forum's 25th anniversary symposium at Duke University Law School. Other speakers at the symposium included Rep. Chellie Pingree (D-Me.), Prof. Michael Roberts of UCLA Law School's Resnick Program on Food Law & Policy, and Prof. Kelly Brownell, dean of Duke's school of public policy.
Linnekin led a panel discussion on local food production that featured owners of a local creamery, restaurant, farm, and meat purveyor. He kicked the panel off with a discussion of the book he's currently writing on food, sustainability, and regulations. The book explores how the latter so very often impacts sustainable food production negatively. In his brief remarks, Linnekin highlighted the story of chef Mark DeNittis, an award-winning, sustainable food producer in the Denver, CO area who was forced out of business by USDA regulators in 2012. The remainder of the lively panel took the form of a Q&A that focused on the ways that food regulations impact the local food producers on the panel.
While in Durham, Linnekin also visited and toured the Duke Campus Farm, a working farm on campus-owned property that is staffed by the university. In 2014, the campus farm faced an existential threat from rules proposed by the FDA under the Food Safety Modernization Act.
We are thrilled to inform our supporters that Keep Food Legal Foundation executive director Baylen Linnekin has signed an agreement with Island Press to write a book on food, sustainability, and government regulations.
The book, due to be completed in late 2015, discusses federal, state, and local laws and regulations that promote unsustainable practices (i.e., farm subsidies encouraging overuse of land and promoting food waste); prohibit sustainable food practices (i.e., food-safety regulations that impede or ban local animal slaughter); and prevent people from growing or obtaining food for themselves and their families (i.e., bans on keeping chickens or gardens on private property).
"Reducing the government’s regulatory footprint would help sustainable food options flourish," says Linnekin. "And by sustainable, I mean foods grown or produced using a set of practices that aspire to maximize the benefits of the food system while minimizing its negative impacts."
The book will draw from rich, real-world examples to illustrate why government must remove the shackles that bind America’s food system in order to ensure a more sustainable food future. Not surprisingly, given Keep Food Legal Foundation's work to protect an individual's right to make their own food choices, the book will discuss these issues through the lens of food freedom.
Island Press, founded in 1984, is a highly respected nonprofit publisher of environmentally themed books authored by a range of experts. It "works to provide the best ideas and information in the field to those seeking to understand and protect the environment and create solutions to its complex problems." Island Press authors include Pulitzer Prize winners E.O. Wilson and Dan Fagan and Pace University Law School Prof. Jason Czarnezki.
"I'm thrilled to work with Island Press and to write this book. I think it has great potential to have widespread impact--particularly by uniting people across typical political and ideological divides. Government rules make it more difficult for people of all stripes to make the food choices they want. That must change."
To celebrate this announcement, donors to Keep Food Legal Foundation who give at least $125 through the end of January will receive a signed copy of the published work, which will likely be issued in 2016.* You may make a donation to the 501(c)(3) nonprofit Keep Food Legal Foundation--a donation that's tax-deductible to the fullest extent of the law--by clicking here.
"We’ve piled regulations on top of regulations for decades-—often with disastrous consequences," says Linnekin, discussing one of the book's key themes. "In many ways, we’re further from a sustainable food system than we’ve ever been thanks to these food rules. It’s time to unchain America’s small farmers and food entrepreneurs."
We'll be sure to keep you posted on the book as events warrant. In the meantime, after you've donated, you may want to head on over to the Baltimore Sun to read Linnekin's 2011 op-ed on the need to end farm subsidies in order to ensure a more sustainable food future.
*Disclaimer: In the unlikely event of publication delays or other issues, we reserve the right to substitute a book of equal or lesser value.